A door opener? Custom as a Source of Law

July 18, 2017

How did customary law serve as a door opener between different legal cultures? In a seminar organized by the research focus area “Translation” in cooperation with the Interdisciplinary Center for East Asian Studies of the Goethe University, Prof. Marie S. Kim took the audience from 16th century France to 19th century Japan and further on to 20th century Korea.

In a first step, Prof. Kim showed how in early modern France, the compilation of customs let to the creation of a customary law shaped by the legal elite. Mere social customs were in this course abandonned from the legal realm. In a next step she showed how this process was repeted in 19th century Japan when the country set out to create a new legal order based on the model of Western law. The lack of Western style codifications was compensated by customary law. While in the beginning, judges understood the category of customary law in a way that allowed them to rely on traditional practices, the category was soon filled with not yet codified ideas taken from European law. In a last step, Prof. Kim traced the use of customary law in Japanse colonial rule in early 20th century Korea. While Korean customs where declared to be respected in familiy and inheritance matters, they were often made fitting to Japanese law through interpretation.

With the three case studies, the lecture gave rich material to reflect on the function of customary law in a broad comparative perspective. By focusing on customary law as a door opener for political agendas in intercultural encounters, Prof. Kim pointed out the multiple use that can be made of customary law: as an instrument for appropriation of foreign law as in the case of Meiji Japan as well as an instrument for forced harmonization as in the case of Korea under colonial rule.

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